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Delhi HC uses ‘doctrine of harmonious construction’; Clarifies forum for appeals in government employee misconduct cases.

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CASE TITLE – Khajan Singh v. Union of India and Ors.

CASE NUMBER – W.P.(C) 15201/2023, CM APPL. 27067/2024 & W.P.(C) 6465/2024, CM APPL. 26938/2024

DATED ON – 20.05.2024

QUORUM – Justice V. Kameswar Rao & Justice Ravinder Dudeja

 

FACTS OF THE CASE

Proceedings under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (“Rules of 1965‟, for short) were initiated against the petitioner (in both the petitions) wherein the allegations are primarily relatable to sexual harassment against the petitioner. The CLICC, which is the Inquiry Authority for Rules of 1965, had also submitted its report to the Disciplinary Authority, which sought the advice of the Union Public Service Commission (“UPSC‟, for short) as the petitioner is the Group-A Officer. The UPSC had tendered its advice and the same had been given to the petitioner for his representation. The reason this petition had been raised is to question the maintainability of the writs and appeals by the respondents, more particularly given the objection taken by stating that the remedy of appeal under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act of 2013‟, for short) is not available to the petitioner as the action on the inquiry report submitted by the Central Level Internal Complaints Committee (“CLICC‟, for short) needs to be considered and decided as per the Rules of 1965.

 

ISSUES

Whether a government employee accused of sexual harassment can appeal the findings of the Internal Complaints Committee (ICC) to a court or tribunal under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013?

Whether The Charged Officer must follow the appeal process laid out in their service rules Central Civil Services (Classification, Control and Appeal) Rules, 1965?

 

LEGAL PROVISIONS

Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, prescribes the appeal process for someone aggrieved by the findings of the Internal Complaints Committee (ICC). It allows an appeal to a “Court or Tribunal” as per the service rules applicable to the person.

Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, prescribes the procedure for disciplinary inquiries, including appointing an Inquiry Authority.

Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, prescribes the details the process for a government employee to submit a representation against the findings of an inquiry.

 

CONTENTIONS BY THE PETITIONER

The Learned Counsel representing the Petitioner submitted that the petitions are duly maintainable before this Court as these petitions raise an important question of law as to the inter play between the provisions of Act of 2013 read with Rules of 1965 and in particular to the remedy of appeal to a Court / Tribunal as available to the petitioner under Section 18(1) of the Act of 2013 against the recommendations of the CLICC. He further states that the Act of 2013 in terms of Sections 9, 11, 13, and 18, contains several checks and balances between the rights of the complainant and the accused. In this regard, Section 18 of the Act of 2013 provides a right to appeal, since, any person aggrieved with the recommendations made by the CLICC under Section 13(2) or 13(3) of the Act of 2013 may prefer an appeal to the Court or Tribunal in accordance with the provisions of the service rules applicable or where no such service rules exist, then the person aggrieved may prefer an appeal in such manner as may be prescribed. The Learned Senior Counsel argued that Section 18 of the Act of 2013 is a safeguard provided to both the accused and the victim, who may be aggrieved by the recommendations of the CLICC, to prefer an appeal before a judicial body i.e., a Court or a Tribunal, and any attempt to designate a quasi-judicial or an administrative body to mean a Court / Tribunal will be violative of the plain and literal meaning of the Section apart from being contrary to the spirit. It was his stand that the Disciplinary Authority is neither a Court / Tribunal nor does it have the trappings of a Court or a Tribunal, and stated that the Disciplinary Authority who is also the accused person’s employer cannot be considered as an independent body having no interest whatsoever in the proceedings. He further submitted that the inquiry proceedings in the complaints filed by the complainants have been conducted under the Act of 2013, in accordance with the applicable service rules, i.e., Rules of 1965. It is his case that if the argument of the respondents is taken to its logical end that the Disciplinary Authority / MHA is the Appellate Authority to consider an appeal against the recommendation of the CLICC, this would lead to an incongruity since Section 13(4) of the Act of 2013 makes it mandatory for the Employer / MHA to act upon the recommendation of the CLICC. Therefore, the employer can never be the Appellate Authority since the employer is statutorily bound to act upon the recommendations of the CLICC. The Learned Counsel argued that on literal reading of Section 18(1) of the Act of 2013, the provision of an appeal to a Court or Tribunal is an intelligible result and has to be construed literally. This is particularly since the Rules of 1965 do not have any provision for an appeal to a Court or Tribunal or other such prescribed Appellate Authority as mentioned hereinabove. In the event, the provision of appeal under Section 18 (1) is treated to be akin to a representation under Rule 15(2), it would lead to rewriting the statute since the intention was to ensure a right of appeal in consonance of principles of natural justice.

 

CONTENTIONS BY THE RESPONDENT

The Additional Solicitor General appearing for the Union of India submitted that the misconduct relatable to sexual harassment being misconduct under the service rules/ Rules of 1965, the proceedings of the CLICC are to be considered as the proceedings for the purpose of Rule 14 of the Rules of 1965, and hence, it is the procedure which is laid down under the Rules of 1965 which needs to be followed. And stated that the UPSC had also tendered its advice to the Disciplinary Authority. Moreover, the advice of the UPSC had also been given to the petitioner to enable him to give representation to the Disciplinary Authority within 15 days. As such, the Disciplinary Authority should now be able to consider the representation made by the petitioner against the recommendation of the CLICC and the advice of the UPSC, to pass a final order in the proceedings. It is his submission that the appeal filed by the petitioner under Section 18 of the Act of 2013, against the recommendations made by the CLICC, is not available because of the applicability of the Rules of 1965, as Section 18 itself contemplates that the remedy of appeal is available in accordance with the provisions of the service rules which are Rules of 1965 in the present case. He submitted that the stand of the petitioner and as contended by the Learned Senior Counsel appearing for the petitioner that the appeal shall lie to the Court or Tribunal, which is an independent authority to mean a court outside the realm of service rules is a totally misconceived argument, when Section 18 of the Act of 2013, clearly states that an aggrieved person may prefer an appeal to the Court or a Tribunal, in accordance with the provisions of the service rules applicable to that aggrieved person. The Additional Solicitor General also brought up a previous precedent set by the same Court to support his argument, Dinesh Chandra Mishra v. India Counsel of Agriculture Research and Ors., W.P.(C) 6538/2019, decided on May 31, 2019, wherein this Court, on an identical issue, has clearly held that Section 18 of the Act of 2013, provides that the appeal has to be in accordance with the provisions of the service rules applicable to the aggrieved persons. Hence, it was categorically observed that Rules of 1965, specifically provides that the inquiry conducted by the CLICC would be treated as one held under Rule 14 of the Rules of 1965 by an Inquiring Authority appointed by the Disciplinary Authority and the same shall be acted upon in terms of Rule 14 of the Rules 1965. It further held that the appeal is provided in cases where the recommendation of the committee itself is final, and they are ipso facto binding and enforceable under Section 13(4) of the Act of 2013, which is not a case herein. It also held that the report of the CLICC in respect of an employee governed by the Rules of 1965, is not per se actionable and would be considered by the Disciplinary Authority. The Learned Counsel representing the CRPF also made her arguments along the same lines, where she stated that the allegations against the petitioner are of sexual harassment and as such, the same need to proceed under the Rules of 1965. She stated that in the present case, CLICC is the Inquiring Authority. On submission of report by the CLICC, further action has to be taken under Rule 15 of the Rules of 1965.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble High Court of Delhi stated that it was necessary to highlight the submission of of the petitioner that a remedy of an appeal before a Court or Tribunal as per the service rules, stipulated under Section 18 of the Act of 2013, had been provided with an intention to provide remedy outside the administrative process to an independent authority, who given the nature of misconduct, shall have to consider the issue fairly. The Hon’ble High Court also went into deeper consideration into this point, when a remedy to challenge is provided under the service rules (representation), reading a further remedy of the Court / Tribunal, shall have the effect of providing a remedy of challenging the findings outside the realm of the administrative process to a Court / Tribunal, which shall make Rule 15 of the Rules 1965, framed under the proviso to Article 309, nugatory. In fact, there would be a conflict between Rule 15 of the Rules of 1965 and Section 18 of the Act of 2013, providing two remedies against the findings of the CLICC. So, it follows that both the provisions must be construed harmoniously, so that one provision does not defeat the other provision. The Court stated that when meaningfully read, it has to be construed that in an eventuality that the Committee / CLICC returns the findings against a government servant, the representation against those findings made by a Charged Officer as per the procedure laid down under Rule 15 of Rules of 1965 thereof, shall satisfy the remedy akin to appeal under Section 18 of the Act of 2013, which is applicable only where the rules concerned specifically prescribe Court or Tribunal as a remedy for filing appeal against the finding / recommendations made by the committee in a given case or where there are no rules, the appeal may be preferred in such manner as may be prescribed. In other words, the rules being in existence providing the remedy to challenge the findings / recommendations of the CLICC in the form of representation to the Disciplinary Authority, by harmoniously construing Section 18 of the Act of 2013, which specifically provides that an aggrieved person may prefer an appeal before a Court or Tribunal in accordance with the provisions of the Service Rules, it was held that in cases like the one at hand, where the procedure of representation against the findings is provided under the Rules of 1965, the remedy to challenge the findings shall surely lie before the Disciplinary Authority as a higher and independent authority and not as a remedy of appeal under Section 18 of the Act of 2013. The Court then reached it’s verdict, stating that the present petition cannot be entertained and that the Disciplinary Authority would be within its right to act on the report of the CLICC and proceed in accordance with law, and that they should, after receiving the representation of the petitioner, shall by considering the advice of the UPSC as well as the recommendations / findings of the CLICC, act in accordance with the procedure as laid down in the Rules of 1965.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Protection to Women Under Industrial Laws

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Abstract

This essay delves into the historical discrimination faced by women in India and the emergence of feminist movements to address gender inequalities. It focuses on the significance of industrial and labor laws in achieving social justice and gender equality. The paper highlights the challenges women encounter in the labor force, such as unequal opportunities, lower wages, and sexual harassment. It emphasizes the importance of equal pay, employment opportunities, and specialized protection for women. The essay also discusses the need for robust laws and implementation to ensure women’s welfare and empowerment. By examining various laws and protections, including maternity benefits and safeguards against hazardous work, the paper emphasizes the significance of creating a safe and equitable work environment for women. Ultimately, it underscores the importance of continuous efforts towards true gender equality and women’s empowerment through legal provisions and mechanisms.

Introduction

Half of India’s population comprises women, who have historically faced discrimination and continue to suffer in silence. Despite their nobility and fortitude displayed through self-sacrifice and self-denial, women have endured various inequities, indignities, and discrimination. The status of women varies across societies, be it developed, developing, or underdeveloped, yet they consistently occupy a disadvantaged position due to pervasive male dominance.

In response to this unequal treatment, various movements advocating for women’s rights emerged worldwide, leading to the concept of ‘Feminism.’ Feminism encompasses diverse social theories, political movements, and moral philosophies, all aimed at addressing inequalities in social, political, and economic contexts experienced by women. In pursuit of this concept, laws have been enacted and rights granted to uplift women, along with various declarations supporting their civil, political, and basic human rights.

Recognizing the social disparities, laws were formulated to achieve social equality and justice and to safeguard women’s rights. The framers of the Indian constitution were also conscious of this issue and incorporated provisions empowering women, leading to the enactment of new laws and amendments to existing ones for the betterment of women’s position in society. As a result of these collective efforts, women now enjoy a stronger and improved standing in society.

The pursuit of gender equality in labor and industrial laws has transcended boundaries, encompassing almost every important sector, including labor regulations. The core objective has been to achieve social justice by creating provisions that protect women’s interests, eliminate gender discrimination, and provide them with various benefits, concessions, and safeguards. These measures aim to secure women from the risks associated with their work and offer them special rights and remedies, particularly in industries such as factories and mines.

Women and Industrial Law

 In the quest for social justice, the legal system should serve as an instrument of distributive justice, ensuring a fair division of wealth and equal opportunities based on the principle of “From each according to his capacity, to each according to his needs.” Ensuring gender equality and safeguarding women’s interests in labor and industrial laws are crucial aspects of this pursuit.

Industrial law holds a position of pride in the legal framework, as it not only addresses labor and industrial matters but also encompasses social concerns affecting children, women, and other marginalized sections of society. The Indian Constitution, driven by the vision of securing social, economic, and political justice for all citizens, irrespective of gender, empowers the state to make special provisions for women and children. This empowerment has led to the enactment of several laws, including the Factories Act, 1948, Mines Act, 1952, Employees State Insurance Act, 1948, Maternity Benefit Act, 1961, and Equal Remuneration Act, 1976, designed to safeguard women’s interests and rights.

Challenges Faced by Women in the Labor Force

Despite the various laws aimed at strengthening women’s position, the participation of women in the labor force is dwindling due to multiple reasons. Job offers not aligning with their requirements create disparities between their potential and actual work. Moreover, security concerns, such as instances of sexual harassment in the workplace, and job opportunities mainly concentrated in the unorganized sector, further limit their access to benefits. Women also face challenges related to childbirth and domestic responsibilities, impacting their work-life balance. Consequently, women not only require equal rights but also specialized protection to achieve true gender equality.

Employment Opportunity and Equal Pay for Equal Work

Equal employment opportunity refers to providing both men and women with equal chances of employment, similar working conditions, and equal pay for the same or similar work. The principles of equality, recognized as natural law, are protected under Article 14 of the Constitution. Promoting equality in employment involves breaking down both horizontal and vertical occupational segregation.

In the case of Jitendra Prasad Singh v. TELCO[1], the court found that equality principles are substantially in the nature of natural law and that denial of equality would be a violation of the equality article, i.e. Article 14 of the Constitution. Promotion of equality in the workplace is a positive enforcement, as opposed to discrimination prevention, which is a type of negative right or negative equality. This entails dismantling both horizontal and vertical occupational segregation.

Article 39 of the Indian Constitution guarantees citizens, including men and women, the right to an adequate means of livelihood and equal pay for equal work. However, despite these provisions, women often face lower wages and limited job opportunities, hindering their career advancement. Eliminating this disparity necessitates further efforts and a concrete law to ensure equal wages and opportunities for women.

The Equal Remuneration Act of 1976 was enacted with the goal of providing equal pay to men and women for the same or equivalent job. This statute requires employers to guarantee that both male and female employees are given equal chances and that there is no discrimination based only on gender. Section 5 of this legislation states that while recruiting for the same or comparable jobs, employers must not discriminate against women unless employment of women in that specific position is forbidden or limited by law. In case Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa[2], the court found that the authority should take a comprehensive view of the subject when determining whether the work is of the same or comparable kind and if the variations are of any practical relevance. This is because “differences in detail” are implied by the idea of similar work. These distinctions should not be used to undermine equality claims on minor grounds; instead, consider the tasks that are actually fulfilled as well as those that are theoretically attainable.

Sexual Harassment at Workplace:

Gender equality extends to protection from sexual harassment and the right to work with dignity, considered a universally recognized basic human right. Sexual harassment, including inappropriate remarks, physical contact, and compromising invitations, violates not only women’s fundamental rights but also their basic human rights. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, aims to protect women from such incidents and provides a mechanism for prevention and redressal of complaints.

Despite the existence of legislation, cases of unreported harassment persist, often due to fear of reprisals and societal disrespect. To empower women to speak against such offenses, stringent punishments and increased awareness about their rights and protections are essential.

In the case of Vishaka vs. State of Rajasthan and Ors[3]., Supreme Court held that according to Articles 14, 15, 19, and 21 of the Indian Constitution, sexual harassment of a woman at work would be a violation of her basic rights to gender equality and the right to life and liberty. The court determined that such an Act would be a breach of women’s human rights.

As a result of this case, the first of its kind standards were developed for women’s gender equality rights, which should be free of harassment in both public and private work. This decision prompted the Indian government to pass the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, which went into effect on December 9, 2013. This Act supplanted the Supreme Court of India’s Vishaka Guidelines for the Prevention of Sexual Harassment.

Special Benefits Given to Women

To further support women, various special benefits are provided, including maternity relief under the Maternity Benefit Act, 1961. This act grants maternity leaves and other benefits to pregnant and lactating women, protecting their well-being during and after childbirth.

Additionally, women are protected from working in hazardous environments, such as mines, where their health and physical fitness may be compromised. Women working night shifts are also provided with safety measures to ensure their well-being.

Conclusion

National and international laws have laid the foundation for women’s welfare and protection, prompting movements towards women’s empowerment in labor laws. Benefits like equal employment opportunity, equal pay for equal work, maternity relief, and protection from sexual harassment have been granted. However, despite these measures, more laws and stringent implementation are needed to achieve true gender equality. A robust redressal mechanism is essential to empower women to raise their voice against injustices they face. To achieve a truly equitable and inclusive work environment, the nation must strive for the effective implementation of laws and protection mechanisms, uplifting women and ensuring their rights and dignity.

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Written by- Ankit Kaushik

[1]  Jitendra Prasad Singh v. TELCO, 1999 2 LLJ 43 (Pat.)

[2] Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa, (1987) 2 SCC 469

[3] Vishaka vs. State of Rajasthan and Ors., JT 1997 (7) SC 384 (Bhanwari Devi Case)